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The high court’s recent decision to hear two same-sex marriage cases in its current term is not likely to be the deus ex machina some legislators are hoping for.

The discomfort some DFL lawmakers are feeling about murmurs they might “overreach” in “continuing the conversation” about gay marriage? Their hunch that the safest political course is to lay the expected bills expanding marriage rights over until 2014, in part because the U.S. Supreme Court will have something to say on the topic in June?

Leaving aside for the moment the question of whether there is actually anything to fear, there’s this: The high court’s recent decision to hear two same-sex marriage cases in its current term is not likely to be the deus ex machina some legislators are hoping for.

The justices could decide that enough of the country has evolved to declare that gays and lesbians share a right to marriage; they could decide that no such right exists; or they could do what some local SCOTUS-watchers are predicting and issue one or two narrow decisions that will ultimately leave the question to state courts or legislatures.

Man of the hour again

Which once again makes Justice Anthony Kennedy the man of the hour. By definition, he will likely vote with the majority in each of the two cases, in which he can then sign on to the majority opinions or write his own concurring and/or separate opinions. If he votes with the liberals, as the most senior justice in that group he is entitled to assign the writing of the majority opinion, a duty he would likely retain for himself.

A professor of constitutional and international law at William Mitchell College of Law, Anthony Winer said that Kennedy is most likely to view both cases through a federalist lens.

“I’m reluctant to predict that Kennedy will find a fundamental right to same-sex marriage,” Winer said.

Rather, Kennedy’s decision on the second of the cases, which challenges the federal Defense of Marriage Act (DOMA), “will not be on the basis of individual rights or equal protection but on federalism grounds.” And they may not reach the merits of the first case at all.

California’s Proposition 8

The first case is Hollingsworth vs. Perry, better known as Prop 8. It was filed in California in 2009 after voters enacted a ban on same-sex marriage, which briefly had been legal. In the suit, the attorneys who squared off in Bush vs. Gore, Ted Olson and David Boies, argued that the ballot initiative was unconstitutional.

A U.S. District Court judge in San Francisco agreed, as did two of three judges on a panel of the Ninth Circuit U.S. Court of Appeals. Many read the panel’s more narrowly cast opinion as written in such a way as to discourage review; the appellate court also rejected a bid for re-review by a larger panel.

If the Supreme Court had decided not to take the case, as many LGBT rights advocates had hoped, same-sex marriage would have become legal again in California, with no other states affected.

Even though it is popularly portrayed as gay marriage’s day in court, because California’s governor and attorney general declined to defend Prop 8, it was the measure’s backers who pushed to have the case heard at the high court.

The specific question they put to the justices: whether the equal protection clause of the 14th Amendment prohibits the state of California from defining marriage as the union of a man and a woman.

Opportunities for a narrow decision

Amy Bergquist

The jurists may not get that far. If they are looking to avoid making a sweeping decision, the case presents opportunities. The first question they must answer is whether the Prop 8 backers have standing to bring the case forward, said Amy Bergquist, a staff attorney at The Advocates for Human Rights’ International Justice Program and a former clerk of Justice Ginsburg’s.

“Given that it granted cert on this question, the court could adopt a broad ruling, but that’s unlikely,” said Bergquist. “The court can resolve the issue before it on narrower grounds.”

Indeed because the question of standing is a “gateway” issue, the justices can decide there is no proper party before them and effectively move the case back to the last stage where there was — the district court level.

If they vacate the appellate decision and send the case back to the district court, the justices might provide some guidance as to the scope of the remanded case. It would seem likely the individual plaintiffs involved would be allowed to marry, but what about others — would they have to bring their own suits?

The justices could reverse course mid-term by issuing something called a DIG, which stands for “dismissed improvidently granted.”

Finally, the justices also could decide that California could not strip away rights that had already been conferred, a ruling that would not grant same-sex couples new rights in other states.

The issue of DOMA

The court could, then, in the first case not find that same-sex couples in all states have a constitutional right to marry while at the same time find in favor of the lesbian plaintiff in the second case, in which a New York woman seeks to overturn the federal Defense of Marriage Act (DOMA). Under the 1996 law, for federal purposes the definition of marriage is a union between a man and a woman, no matter how a couple’s home state defines it.

The plaintiff in United States vs. Windsor is 83-year-old New Yorker Edith Windsor, who married her partner of more than 40 years, Thea Spyer, in 2007 in Canada. When Spyer died in 2009, Windsor was hit with some $600,000 in estate taxes on their two properties that a spouse in an opposite-sex marriage would not have had to pay.

In October, U. S. Court of Appeals for the Second Circuit sided with Windsor and became the second federal appellate court to strike down DOMA. Like California’s state government in Prop 8, the Obama administration has declined to defend DOMA in this or any of the other challenges it faces.

Viewed through Kennedy’s lens, the Windsor case may look like a federal intrusion on a state’s rights — an argument that might also appeal to other conservatives on the court, said Winer. A 5-4 vote invalidating this aspect of DOMA would leave the definition of marriage to individual states.

Windsor would then be entitled to her federal estate-tax exemption, while a same-sex survivor of a partnership in Minnesota, which has a state gay-marriage ban on the books, would not. A decision along these lines would not change Minnesota’s ability to refuse to grant marriage rights to gays and lesbians.

Differing definitions among states

States have long used differing definitions of marriage and have recognized as valid marriages performed elsewhere, said Bergquist. Some states allow first cousins to marry, for instance. Minnesota typically does not, but Minnesota courts have sometimes recognized the marriages of cousins married in states where it’s legal.

And it’s not the only way in which states are treated differently by federal law, said Winer. Under the Voting Rights Act of 1965, for example, some states with a history of official racial discrimination are required to fulfill more requirements than other states.

Interesting to Bergquist is the fact that the high court appointed an attorney to argue “standing” and another jurisdiction issue in the DOMA case. Because federal appeals courts have issued differing opinions about the law and twice struck it down, the justices might feel more pressure to work past the technical questions to resolve the merits of the DOMA case.

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As reflected in polls and recent ballot measures, public opinion is moving in favor of same-sex marriage. Now that the US Supreme Court has agreed to take up the issue, both sides in the debate look for clear legal resolution.

Comments (4)

If the US recognizes opposite-sex marriages performed in Canada as legitimate, then there is a contradiction. Either marriages legally performed (and recognized in Canada as legal) are accepted in the US or they are not.

I am aware of no objective reason for any reporter to predict that Chief Justice Roberts and Justice Alito will vote against same-sex couples. Just because reporter after reporter repeats this prediction is not in itself evidence or reason to believe that prediction.

Striking down a law endorsed by a majority of the House and the Senate, and signed into law by the President, is a big deal. Particularly on divisive political issues, some judges (and justices) generally defer to the so-called political (i.e., elected) branches of the federal government. In other words, if there’s something horribly wrong with DOMA, then Congress and the President should have the political will (and popular support) to fix it. (I don’t agree with this rationale, but I think it’s an “objective” basis to predict that C.J. Roberts and J. Alito would vote to uphold DOMA.)

The fact that people define themselves through their intimate relationships with others suggests that in a Nation as diverse as the USA, that there may be many “right” ways of conducting these relationships.
It also suggests that in a variety of circumstances, we have to recognize that giving people the freedom to choose how to conduct their lives, is acceptance of the fact that different individuals will make different choices!
Freedom to differ is not limited to things that do not matter much, that would be a mere shadow of freedom! The test of freedom is the right to differ about things that touch the heart of the existing order!
It is precisely because the issues raised by California’s Proposition 8 and the Defense of Marriage Act (DOMA) touches the heart of what makes people who they are that we should be especially sensitive to the rights of those whose choices upset the majority!